DAYASHANKAR NANALAL Vs. HARISHANKAR GANPATRAM THAKKAR

JUDGEMENT

(1.) In this civil revision application it is contended that the executing Court had no right to go into the questions of title while investigating a claim or objection made under O. 21 R. 58 C. P. Code. The mode of such investigation is explained in O. 21 R. 58 O. 21 R.59 and O. 21 R. 60 C. P. Code. O. 21 R. 58 relates to claims or objections on the ground that the property attached was not liable to such attachment. The question whether the property was or was not liable to such attachment is therefore to be investigated. Order 21 R. 59 C. P Code provides that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in or was possessed of the property attached. The executing Court has therefore to see whether the claimant or objector has adduced evidence to show that at the date of the attachment he had some interest or was possessed of the property attached. O. 21 R. 60 C. P. Code reads as follows :- -

(2.) According to this provision the Court must be satisfied that for the reason stated in the claim or objection such property was not when attached in the possession of the judgment-debtor or in trust for him or in the occupancy of a tenant or other person paying rent to him or that being in the possession of the judgment-debtor at such time it was so in his possession not on his own account or as his own property but on account of or in trust for some other person or partly on his own account and partly on account of some other person and then the Court shall make an order releasing the property wholly or to such extent as it thinks fit from attachment. Order 21 Rule 63 C. P. Code provides that where a claim or an objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit if any the order shall be conclusive. According to these provisions therefore the claimant or objector can contend that he has a right to the property in dispute and he may establish that right if an order is made against him in the execution proceedings. It is clear from these provisions that the scope of investigation of a claim or objection under O. 21 R. 58 C. P. Code is that which is prescribed in Order 21 Rules 58 59 60 and 63 C. P. Code. Even when deciding the point mentioned in O. 21 R 60 for instance the question whether the possession of the judgment-debtor was possession not on his own account or as his own property but on account of or in trust for other person the question of title may sometimes have to be gone into. Ownership is an interest in property and the words some interest are used in O. 21 R. 59 C. P. Code according to which the claimant must adduce evidence to show that at the date of the attachment he had some interest in or was possessed of the property attached. If he was the owner of the property on the date of the attachment that would of course mean that he had some interest in the property. In Sardhari Lal v. Ambika Parshad I.L.R. 15 Calcutta 531 their Lordships of the Privy Council have observed at p. 626 as follows :- -

(3.) In Najimunnessa Bibi v. Nacharuddin Sardar I. L. R. 61 Cal. 548 it is observed as follows at p. 666 :- -